A CCA Blog: The Aardvark*
I hardly come out of my burrow, and then only at night, so I was pretty interested to hear about a recent federal appellate decision holding that arbitration subpoenas in the US have nationwide scope.
That’s the outcome in Jones Day v. Orrick, 42 F. 4th 1131 (9th Cir. 2022), a recent decision regarding an arbitration between two big law firms. The Ninth Circuit ruled that arbitration subpoenas have nationwide scope.
So what’s this all about? Well, we all know that arbitration is generally intended to be a time and cost-efficient process and the parties in arbitration try to limit discovery to what’s reasonable and necessary. In many US jurisdictions, there isn’t third party discovery unless a state statute allows it or everyone agrees. But under federal law, third parties can be required to produce documents and testify at the arbitration hearing. Under the Federal Arbitration Act, 9 USC 7, arbitrators have the power to issue subpoenas to third parties for hearing testimony.
That’s how these two big law firms got into a dispute over arbitration subpoenas. The case is about a former Jones Day international partner who left to join Orrick. At the request of Jones Day, the arbitrator issued subpoenas for Orrick’s Chairman and Managing Partner to appear and produce documents. A couple of courts have been involved. Orrick refused to appear in Washington DC, the place of arbitration, or in California, where it is headquartered, contending that the subpoenas could only be enforced in Washington DC, the place of arbitration, and that there was no basis for personal jurisdiction over Orrick there.
A court in Washington DC agreed there was no basis for personal jurisdiction there, so Jones Day asked a federal court in California to enforce a subpoena requiring Orrick to appear in California. The lower court declined, based, in part, on the venue argument. The Ninth Circuit reversed, holding that the FAA Section 204 venue provision is non-exclusive, and does not limit venue to the place of the arbitration. The Court determined that arbitration subpoenas issued pursuant to the FAA can be issued nationwide and enforced in court under the general venue provisions of 28 USC 1391(a). Although Jones Day involved the FAA international provisions, it stands for the proposition that FAA subpoenas can be enforced in court just like trial subpoenas, including at the witness’s residence. That gives arbitration subpoenas a big advantage over court subpoenas, because arbitration hearings can be held in multiple locations, including by videoconference.
The fight between these two legal giants is far from over. But, for now, it’s clear that arbitration subpoenas have nationwide scope. So, wow, who knew that arbitration subpoenas go a lot further than aardvarks do!
*We are using the Aardvark moniker to denote our CCA Blog. The Aardvark will provide content from time to time about cases, developments and issues associated with the practice of Arbitration. We hope you will find the blog entries interesting and useful. We encourage you to watch for the Aardvark and its arbitration content that we hope you will enjoy.